David Goldman and his wife, Bruna Bianchi, had a son (Sean) in May, 2000. In June, 2004, Bianchi and Sean went to visit her family in Brazil. As far as Goldman knew, they were to be gone for two weeks.
Within days of their arrival, Bianchi told Goldman they would not be coming back and that he would not be seeing his son again. There’s an international treaty–referred to as the Hague Convention–that is designed to manage situations like this–where one parent tries to deprive another of contact with a child by fleeing to a different country. As early as September, 2004, Goldman invoked the Hague Convention and began legal proceedings to try to regain access to his son.
I’m going to interrupt the narrative there, for a moment to consider how things stood then, in 2004. (Let me also add a caveat here–I do not have any special access to the facts of the case. There’s doubtless competing versions of the events here. I don’t know the truth and I don’t even know the competing versions of events. I just want to use this simplified version of the facts as a jumping off point for some discussion.)
Bianchi was clearly in the wrong in absconding with Sean. Not only was it a violation of Goldman’s rights as a parent, severing Sean’s connection to Goldman was a terrible thing to do to Sean. It seems to me that in September, 2004, Goldman should clearly have been entitled to bring Sean back to the US and Goldman and Bianchi should have worked out some arrangement that would have allowed each to spend time with Sean child and continue her/his parental relationship.
But that didn’t happen. Though in October, 2005, a Brazilian court found in Goldman’s favor, Sean remained in Brazil and Goldman was not able to see him. Indeed, Goldman did not see Sean again until February, 2009.
In the meantime, in August, 2008, Bianchi died. This means that Goldman became the sole legal parent of Sean. Before her death, however, Bianchi had previously remarried and Sean remained in the care of his step-father and extended family in Brazil.
Earlier this month a Brazilian court ruled that Sean must be returned to his father’s care in the US and yesterday the Brazilian Supreme Court refused to overturn this decision. This is the why the case is in the news again.
Here is the question I want to consider: Is what would have been the right result in 2004 still the right result today? Surely Bianchi’s conduct is a wrongful now as it was then, and just as clearly Goldman has been grievously wronged. But nearly five years have passed, and Sean did not see Goldman at all for the vast majority of that time. Instead, he lived with a different family– his mother, his step-father and various relatives–in Brazil. What has changed since 2004 is not the nature or quality of the actions taken in 2004. What has changed is the reality of Sean’s life. What weight should we give to that reality?
The problem is an inevitable one caused by the passage of time. It is a different facet of the same issue I discussed in the recent West Virginia case. There the passage of time served to the bolster the claims of Cheryl Hess and Kathryn Kutil to raise CMG. And it is the problem that makes the wrongful adoption problem so difficult to resolve.
Proper legal process and thoughtful adjudication takes time. But the passage of time in cases regarding children can create intolerable dilemmas, as it has here. We cannot hold a child’s life in abeyance while a judge considers law and evidence and evaluates her or his options. The child is somewhere, living with someone, establishing ties, building a life. Concern for the child pushes us to recognize those realities even as concerns for law and justice push us to recognize wrong-doing (such as Bianchi’s) and provide what remedies we can to those who have been wronged (here Goldman).
Individual cases resolve these tensions one way or another, because they must. But the basic problem remains. It would surely help to fast-track family law cases, but I’m not sure there is any real way to keep it from recurring countless times in different guises